State v. Adleman, No. CR-21-0157-PR (February 9, 2022) (J. Lopez) https://www.azcourts.
Defendant was charged with various felonies including first degree murder. He, along with other inmates at the Maricopa County Jail are provided computer tablets to communicate with people outside the jail. Regulations at the jail state the tablets are monitored by the jail; only the jail's designated legal phone is unmonitored. Contract defense lawyers were informed via e-mail from an administrator at the Office of Contract Counsel of this and specifically that communications on tablets are not privileged communications.
Despite this defendant communicated regularly with his defense lawyers on the tablet. Eventually, a new system, “Getting Out” was established that allowed for confidential, unmonitored video and phone calls but all were warned that text messages would continue to be monitored and were not privileged even under the new system. The State subpoenaed all the defendants communications on the tablet to address the defendant's claim he was intellectually incapable of being subjected to the death penalty. The defense argued to the trial court that all the communications between the defendant and counsel and counsel's office were, confidential, privileged and non-discoverable. The trial court agreed. The State brought this special action. The Arizona Court of Appeals remanded to the trial court for fact specific inquires regarding communications that occurred before the institution of the “Getting Out” program. The Arizona Supreme Court accepted special action jurisdiction and vacated the trial court ruling and reversed and remanded the court of appeals decision.
It is the obligation of the client asserting the attorney-client privilege to make a prima facie showing the privilege applies. This requires a showing that an attorney-client relationship existed, that the communication in question was made to obtain or give legal advice, and that the communication was made and treated as confidential. All attorney-client communications are not categorically privileged. Here the defendant failed to make this showing but on the same token the State improperly served a blanket subpoena seeking the communications and reviewed all of them before disclosing them to the defense. The State was obligated to stop review as soon as it reasonably should have concluded the privilege was at issue. Likewise the defense claimed the jail denied the defendant access to the unmonitored legal phone, justifying the defendant using the tablet to communicate with his lawyers.
The case is therefore remanded to the trial court to determine whether the “circumstances of the communications” rendered them privileged and to make a finding as to whether the inmates' access to the legal phone impermissibly interfered with the defendant's ability to confidentially communicate with his lawyers.
Finally the court noted that since the subpoena of the communications was issued for the purpose of determining whether the defendant's claim he was intellectually incapacitated, and therefore could not be subject to the death penalty, was valid and since the State is no longer seeking the death penalty, this whole issue may be moot.